JUDGMENT 1. - This miscellaneous appeal is preferred by the appellant-wife against the judgement and decree dated 05/11/2009 passed by Family Court number 1, Jaipur, whereby the learned family court granted a decree of divorce on grounds of cruelty and desertion. 2. The factual matrix of the case is that the marriage between the parties was solemnised on 07/12/1996 at Kota as per Hindu ritual and customs. Out of the wedlock, one daughter, namely, Kaumudi was born on 19/08/1998 and the second daughter namely Pavitra was born on 15/08/2001. 3. The petition for divorce was filed by the respondent-husband wherein it was alleged that the appellant-wife was in Government service and more qualified because of which she was always proud and used to look down on him. Right from the very beginning, she was adamant about going back to her workplace and she neglected all her conjugal duties. On the dates mentioned in the divorce petition, the appellant-wife pestered her husband about going back to her workplace and on his refusal to allow her to do so; she said she would go back to her parents' house thereby neglecting all her household duties which a wife is expected to do. To make the matter worse, she would not even take care of her daughters and used to ill-treat the guests and relatives of the respondent. She would also verbally abuse him and put allegations against her husband and father-in law that they had illicit relations with their mother and daughter respectively. The respondent-husband also contends that she filed a false complaint under Section 498A of IPC against him and a number of other vexatious cases. The respondent-husband contended that this behaviour of the appellant amounted to mental cruelty. It is further alleged that from 02/12/2002, the appellant-wife deserted him and the two never cohabited since then. On 20/04/2005, a settlement between the parties was arrived at but despite that there was no improvement in her behaviour and she also committed breach of the terms thereof. 4. The appellant-wife, on the other hand denied all the allegations levelled against her. According to her, the respondent-husband has an inferiority complex. She always respected him and never went to work without informing him. 4. The appellant-wife, on the other hand denied all the allegations levelled against her. According to her, the respondent-husband has an inferiority complex. She always respected him and never went to work without informing him. Because of the constant mental and physical torture by her husband and in-laws, she was forced to file a complaint under Section 498 A of IPC, which is still pending in the Court. As regards the settlement, she contends that she was coerced and pressurised to enter into the same. She also contends that because of her work constraints, she is forced to leave her daughters in the care and custody of her in-laws but she never neglected them. Her husband under the influence of his parents tortures her. She also contends that they have been living in the same room and she never deserted him and they are still cohabiting. Further, her in-laws also incited her daughters against her. 5. On the basis of the pleadings, following issues were framed by the Court; 1.Whether the non-applicant subjected the applicant to cruelty? 2.Whether the non-applicant deserted the applicant without probable and reasonable cause? 3.Relief? 6. To prove the aforementioned issues, the respondent-husband got himself examined as P.W.-1 and also examined P.W.-2,Krishna Murari. In rebuttal, the appellant-wife got herself examined as D.W.-1 and Shri Giri Raj Datt as D.W.-2. The Court decided both the issues in favour of the respondent-husband and consequently granted a decree of divorce on grounds of cruelty and desertion in favour of the respondent-husband. Aggrieved, the appellant has preferred this appeal. 7. It has been submitted by the learned counsel for the appellant-wife that the Judge Family Court has not appreciated the evidence on the record at all. The grounds of cruelty and desertion were not proved by the respondent-husband with the evidence on the record. The learned counsel for the appellant-wife further submitted that while deciding issue No. 1 the learned Family Court has not considered the true and correct meaning of the term cruelty. It is further submitted by the learned counsel for the appellant-wife that the issue regarding desertion was also not established by the respondent-husband by evidence but the learned Family Court erred in deciding the issue relating to the desertion against the appellant-wife. The learned counsel for the appellant-wife has also submitted written submissions and relied upon Madhu (Smt.) v. Mukesh Naryar & Ors. The learned counsel for the appellant-wife has also submitted written submissions and relied upon Madhu (Smt.) v. Mukesh Naryar & Ors. In 2007(4) RLW page 3620 , Chetan Dass v. Kamla Devi in RLW 2001 (2) SC 201 , P. Malleswaramma v. P. Prathap Reddy in AIR 2006 Andhra Pradesh 4 and Rekhabai v. Gangaram in II (2004) DMC 503 . 8. Per contra learned counsel for the respondent-husband referring to the evidence on record oral and documentary, supported the impugned judgment of the learned Family court and submitted that the appellant-husband proved the grounds of cruelty as well as desertion. Learned counsel for the respondent-husband has also submitted written submissions. 9. We have heard learned counsel for both the parties, perused the material on record and considered rival submission and also the written submission submitted by the parties. 10. "Cruelty" is a ground of divorce under Section 13 (1)(1-a) of the Hindu Marriage Act, 1955 (hereinafter referred to as 'The Act'). Sub section (1) of Section 13 of the Act provides that: ....... "Any marriage solemnised, whether before or after the commencement of this Act, may, on petition presented by either the husband or the wife, be dissolved by a decree of divorce on the ground that the other party." .... (ia) as after the solemnisation of the marriage, treated the petitioner with cruelty. 11. The term cruelty is not defined under the Act. But it is now well settled that the conduct should be grave, so as to make co-habituation virtually intolerable. It must be more serious than normal wear and tear of marriage. The cumulative conduct, taking into consideration, the circumstances and background of the parties, has to be examined to reach to a conclusion whether the act amounts to cruelty. There can not be any dispute with regard to the legal position that cruelty may either be mental or physical and includes both acts and omissions. The question of cruelty should be answered in light of norms of the marital ties of the particular society to which the parties belong, their social values, status enjoyed by them, physical and mental conditions, the interaction between them in their daily life and various relevant factors in Samar Ghosh v. Jaya Ghosh reported in (2007) 4 SCC 511 Hon'ble Apex Court. After considering the various rulings of the Hon'ble Apex Court, and other factors has observed as under:- "101. After considering the various rulings of the Hon'ble Apex Court, and other factors has observed as under:- "101. No uniform standard can ever be laid down for guidance, yet we deem it appropriate to enumerate some instances of human behaviour which may be relevant in dealing with the cases of 'mental cruelty'. The instances indicated in the succeeding paragraphs are only illustrative and not exhaustive: (i) On consideration of complete matrimonial life of the parties, acute mental pain, agony and suffering as would not make possible for the parties to live with each other could come within the broad parameters of mental cruelty. (ii) On comprehensive appraisal of the entire matrimonial life of the parties, it becomes abundantly clear that situation is such that the wronged party cannot reasonably be asked to put up with such conduct and continue to live with other party. (iii) Mere coldness or lack of affection cannot amount to cruelty, frequent rudeness of language, petulance of manner, indifference and neglect may reach such a degree that it makes the married life for the other spouse absolutely intolerable. (iv) Mental cruelty is a state of mind. The feeling of deep anguish, disappointment, frustration in one spouse caused by the conduct of other for a long time may lead to mental cruelty. (v) A sustained course of abusive and humiliating treatment calculated to torture, discommode or render miserable life of the spouse. (vi) Sustained unjustifiable conduct and behaviour of one spouse actually affecting physical and mental health of the other spouse. The treatment complained of and the resultant danger or apprehension must be very grave, substantial and weighty. (vii) Sustained reprehensible conduct, studied neglect, indifference or total departure from the normal standard of conjugal kindness causing injury to mental health or deriving sadistic pleasure can also amount to mental cruelty. (viii) The conduct must be much more than jealousy, selfishness, possessiveness, which causes unhappiness and dissatisfaction and emotional upset may not be a ground for grant of divorce on the ground of mental cruelty. (ix) Mere trivial irritations, quarrels, normal wear and tear of the married life which happens in day-to-day life would not be adequate for grant of divorce on the ground of mental cruelty. (x) The married life should be reviewed as a whole and a few isolated instances over a period of years will not amount to cruelty. (ix) Mere trivial irritations, quarrels, normal wear and tear of the married life which happens in day-to-day life would not be adequate for grant of divorce on the ground of mental cruelty. (x) The married life should be reviewed as a whole and a few isolated instances over a period of years will not amount to cruelty. The ill conduct must be persistent for a fairly lengthy period, where the relationship has deteriorated to an extent that because of the acts and behaviour of a spouse, the wronged party finds it extremely difficult to live with the other party any longer, may amount to mental cruelty. (xi) If a husband submits himself for an operation of sterilisation without medical reasons and without the consent or knowledge of his wife and similarly, if the wife undergoes vasectomy or abortion without medical reason or without the consent or knowledge of her husband, such an act of the spouse may lead to mental cruelty. (xii) Unilateral decision of refusal to have intercourse for considerable period without there being any physical incapacity or valid reason may amount to mental cruelty. (xiii) Unilateral decision of either husband or wife after marriage not to have child from the marriage may amount to cruelty. (xiv) Where there has been a long period of continuous separation, it may fairly be concluded that the matrimonial bond is beyond repair. The marriage becomes a fiction though supported by a legal tie. By refusing to sever that tie, the law in such cases, does not serve the sanctity of marriage; of the contrary, it shows scant regard for the feelings and emotions of the parties. In such like situations, it may lead to mental cruelty." 12. So far as the desertion is concerned, Section 13(1) (ib) of the Act, providing desertion as ground of divorce, reads that "13, Divorce. (1). Any marriage solemnised, whether or after the commencement of this Act, may, on petition presented by either the husband or the wife, be dissolved by a decree of divorce on the ground that the other party". ..... "(ib) has deserted the petitioner for continues period of not less than two years immediately preceding the presentation of the petition". 13. (1). Any marriage solemnised, whether or after the commencement of this Act, may, on petition presented by either the husband or the wife, be dissolved by a decree of divorce on the ground that the other party". ..... "(ib) has deserted the petitioner for continues period of not less than two years immediately preceding the presentation of the petition". 13. The elements, which, need to be satisfied in order to constitute the matrimonial offence of desertion as per the Act can, therefore be enumerated as: (a) factum of a valid marriage (b) the intention to desert i.e. animus. (c) the factum of separation i.e. deserendi (d) animus deserendi without just and reasonable cause (e) desertion for a continuous period of two years immediately preceding the date of presentation of the petition. 14. Desertion is a ground which strikes at the very foundation of the marriage between the parties i.e. fulfilling the conjugal obligation and to cherish companionship. Each spouse is bound by certain duties towards the other. Desertion without reasonable cause is abandonment of such obligation by one spouse towards the other. The essence of desertion lies either in physical or mental separation with the intention to give up on the matrimonial duties permanently, for a continuous a period of two years. Such Act of separation by the deserting spouse, whether constructive or express, must co-exist with his/her intention to desert. The Hon'ble apex Court, inter alia, brought forth essential ingredients of desertion as ground of matrimonial relief in the case of Bipinchandra Jaisinghbai Shah v. Prabhavati, AIR 1957 (SC 176 ) . The Hon'ble Apex Court in Savitri Pandey v. Prem Chandra Pandey (2002) 2 SCC 73 observed as under:- "6. Treating the petitioner with cruelty is a ground for divorce under Section 13(1)(i-a) of the Act. Cruelty has not been defined under the Act but in relation to matrimonial matters it is contemplated as a conduct of such type which endangers the living of the petitioner with the respondent. Cruelty consists of acts which are dangerous to life, limb or health. Cruelty for the purpose of the Act means where one spouse has so treated the other and manifested such feelings towards her or him as to have inflicted bodily injury, or to have caused reasonable apprehension of bodily injury, suffering or to have injured health. Cruelty may be physical or mental. Cruelty for the purpose of the Act means where one spouse has so treated the other and manifested such feelings towards her or him as to have inflicted bodily injury, or to have caused reasonable apprehension of bodily injury, suffering or to have injured health. Cruelty may be physical or mental. Mental cruelty is the conduct of other spouse which causes mental suffering or fear to the matrimonial life of the other. "Cruelty", therefore, postulates a treatment of the petitioner with such cruelty as to cause a reasonable apprehension in his or her mind that it would be harmful or injurious for the petitioner to live with the other party. Cruelty, however, has to be distinguished from the ordinary wear and tear of family life. It cannot be decided on the basis of the sensitivity of the petitioner and has to be adjudged on the basis of the course of conduct which would, in general, be dangerous for a spouse to live with the other. In the instant case both the trial court as well as the High Court have found on facts that the wife had failed to prove the allegations of cruelty attributed to the respondent. Concurrent findings of fact arrived at by the courts cannot be disturbed by this Court in exercise of powers under Article 136 of the constitution of India. Otherwise also the averments made in the petition and the evidence led in support thereof clearly show that the allegations, even if held to have been proved, would only show the sensitivity of the appellant with respect to the conduct of the respondent which cannot be termed more than ordinary wear and tear of the family life. 8. "Desertion", for the purpose of seeking divorce under the Act, means the intentional permanent forsaking and abandonment of one spouse by the other without that others consent and without reasonable cause. In other words it is a total repudiation of the obligations of marriage. Desertion is not the withdrawal from a place but from a state of things. Desertion, therefore, means withdrawing from the matrimonial obligations i.e. not permitting or allowing and facilitating the cohabitation between the parties. In other words it is a total repudiation of the obligations of marriage. Desertion is not the withdrawal from a place but from a state of things. Desertion, therefore, means withdrawing from the matrimonial obligations i.e. not permitting or allowing and facilitating the cohabitation between the parties. The proof of desertion has to be considered by taking into consideration the concept of marriage which in law legalises the sexual relationship between man and woman in the society for the perpetuation of race, permitting lawful indulgence in passion to prevent licentiousness and for procreation of children. Desertion is not a single act complete in itself, it is a continuous course of conduct to be determined under the facts and circumstances of each case. After referring to a host of authorities and the views of various authors, this Court in Bipinchandra Jaisinghbai Shah v. Prabhavati held that if a spouse abandons the other in a state of temporary passion, for example, anger or disgust without intending permanently to cease cohabitation, it will not amount to desertion." 15. In our considered view, cruelty and desertion are two separate and independent grounds for seeking a decree of divorce. In spite of this the learned Family Court grossly erred in deciding both the issues together. After perusal of the judgment, we find that though evidence has been referred to by the Court below, no appreciation thereof whatsoever has been done by the Court below. In spite of this the learned Family Court grossly erred in deciding both the issues together. After perusal of the judgment, we find that though evidence has been referred to by the Court below, no appreciation thereof whatsoever has been done by the Court below. The learned Trial Court has decided issue No. 1 and 2 together and not distinctly and observed as under:- " tgka rd dzwjrk dk O;ogkj dk iz'u gS] mlds dze esa ijks{k :i esa ;g fufoZokn gS fd i{kdkjku ds chp djhc 8 eqdnesa ntZ gS ftlesa Lo;a vizkFkhZ;k ds vuqlkj ngst izrkM+uk dk izdj.k 498&, Hkk0na0la0 eksckbZy pksjh dk eqdnek] lu~ 2007 esa iqfyl esa fn;k x;k bLrxklk] ekuokf/kdkj esa nh xbZ dk;Zokgh ,oa ,l0Mh0,e0 dksVZ esa nh xbZ f'kdk;r ls Li"V gSA ;g Hkh mYys[kuh; gS fd rykd dk ;g f}rh; izdj.k gksrk dgk gS tks fnukad 7-12-2004 dks izkFkhZ vfer izHkkdj }kjk izLrqr fd;k x;k tcfd ngst izrkM+uk dk izdj.k blds ckn vizkFkhZ;k }kjk ntZ djk;k x;k ftlesa ,Q0vkj0 yxh gSA ,d vkSj fLFkfr fofp= izdkj dh ekeys esa tkfgj gksrh gS ftlesa 84] xkso/kZu dkyksuh] U;w lkaxkusj jksM+] t;iqj dk edku tks izkFkhZ dk gS ml ij ckotwn ( rukoxzLr fj'rk ) r:.k lsok laLFkku vizkFkhZ;k i{k }kjk [kksyk gqvk gS vkSj bldk irk vkt rd ch fjdkMZ ds vuqlkj ;gh gSA bu lc ds lkFk ,d nwljs ds fo:) ekjihV djuk] vHknz O;ogkj ,oa xkyh xykSp djuk Hkys gh dgk x;k gS ysfdu izkFkhZ i{k }kjk vizkFkhZ;k ds fo:) blds vHknz O;ogkj dh f'kdk;r dk Li"Vhdj.k izkFkhZ i{k dh lk{; esa ckotwn ftjg vf/kd fo'oluh; izdV gksrk gSA ,sls esa i'pkRorhZ /kkjk 798&, Hkk0na0la0 ds eqdnesa esa izkFkhZ] mlds ekrk&firk vkSj uun dks 'kkfey djuk Hkh bl dze esa egRoiw.kZ gSA blls Hkh vf/kd egRoiw.kZ esjs fouez er esa izkFkhZ dh ekrk ds lkFk izkFkhZ dk vkSj izkFkhZ ds firk dk mlds csVh ds lkFk uktk;t lEcU/k gksus dk vk{ksi xEHkhj dgk tkus ;ksX; gSA bl izdkj mijksDr foospu ls vf/kd fVIi.kh u djrs gq, crkSj fu"d"kZ dzwjrkiw.kZ O;ogkj ,oa fnlEcj] 2002 ls crkSjk ifr&ifRu nkEiR; thou dh mis{kk dk d`R; vizkFkhZ;k ds fo:) izekf.kr ik;s tkrs gSaA bl izdkj ;g nksuksa fook|d la[;k 1 o 2 izkFkhZ i{k esa r; fd;s tkrs gSaA " 16. The learned Court below observed that there are eight cases pending between the parties. The learned Court below observed that there are eight cases pending between the parties. But the Court below failed to give any reasons as to how the pendency of the aforesaid cases has any bearing on the proof of cruelty as is required to entitle the respondent-husband to a decree of divorce. It is a settled principle that filing of vexatious case may amount to mental cruelty. But in the case at hand, the court below, has no premise to observe that the cases filed by the appellant-wife are vexatious and hence, amounts to cruelty. Further, the Court below observed that despite the strained relations between the respondent-husband and the appellant-wife, latter and her family members have been running 'Tarun Seva Sansthan' in the premises namely 84, Goverdhan Colony, New Sanganer Road, Jaipur. We miserably fail to understand the relevance of such an observation to prove cruelty or desertion. As also, the basis of observing the same is beyond our comprehension. 17. Moreover, the Court below asserts that the evidence of the respondent-husband is more reliable than that of the appellant-wife. But how is it reliable, why is it reliable and to what extent it is more reliable, finds no place in the said observation. There is absolutely no reason as to what propelled the Court below to draw such conclusion. An observation devoid of reason strikes the principle of natural justice. 18. The Court below further observed regarding allegation that the respondent-husband has illicit relation with his mother and his father has illicit relation with his daughter, as stated in the pleadings of the respondent-husband, is itself grave to amount mental cruelty. We are of the view, that merely because the respondent-husband states the above allegation in his pleadings, cannot be the basis to infer that the allegation is proved, so much so that, it amounts to cruelty. As to how the Court below considers the above facts proved, finds no mention in the Judgment. 19. Lastly, as regards desertion, the Court below concludes that the wife had deserted the husband since December, 2002. Again, at the cost of repetition there is no reason for such conclusion to be drawn. As to how the Court below considers the above facts proved, finds no mention in the Judgment. 19. Lastly, as regards desertion, the Court below concludes that the wife had deserted the husband since December, 2002. Again, at the cost of repetition there is no reason for such conclusion to be drawn. The said observation is devoid of any premise or foundation, to prove desertion, the Court cannot take a casual approach rather, the ingredients (as stated earlier) under Section 13 (1) (1b) must be proved after duly appreciating the evidence on record. 20. Also, the Court below has failed to observe the effect of the settlement agreement Ex.-1 arrived at between the parties during the pendency of the petition. 21. From the above discussions we are of the opinion that the case needs to be remanded back to the trial Court for fresh adjudication. 22. In the result, this appeal is hereby allowed and the judgment and decree dated 05/11/2009 passed by the Court below is set aside and the matter is remitted back to the learned Family Court No. 1, Jaipur to decide the matter afresh in accordance with law, as expeditiously as possible but in no case later than three months after the parties put their appearance. The parties shall remain present in the Court below on 23/02/2015 at 10:30 AM. There shall be no Order as to costs.Appeal allowed. *******